Player-to-player personal injury sports claims on the rise

Elbanna v Clark [20.03.24] is the latest case in respect of liability for sporting injuries, following on from Czernuska v King [2023], Fulham FC v Jones [2022] and Tylicki v Gibbons [2021]. In Elbanna v Clark an amateur rugby player was found liable for injury he caused when “playing an opponent” without the ball. The outcome turned on the facts of the case.

Facts of the case

The claimant and defendant were playing in an amateur rugby match on opposite sides. They were both experienced amateur players.

The game was filmed and regulated by Rugby Football Union (RFU) rules.

As the game was restarted for the second half, the defendant’s team were taking the kick. The defendant ran forward at speed from just behind the halfway line to chase the ball. His intention was to run forwards to get to the ball after it had been kicked. The ball was high in the air and the claimant was more or less stationary with his back to the defendant with his eyes on the ball.

The defendant ran forward, gathering speed over about 12 metres, in a straight line, towards the claimant. The ball was still high in the air. The defendant’s body braced for impact shortly before both he and the claimant moved slightly to the right. The defendant then collided with the claimant at speed.

The ball was still in the air from the kick at the time of the collision.

The law

The Judge considered the case of Czernuszka v King [2023], whereby it was noted that recklessness on the part of a defendant is not a necessary ingredient of negligence arising in sport. Rather, the ‘ordinary’ test for negligence applies. In this case the Judge also stressed that while the rules of the sport may be relevant in helping consider liability, it is not conclusive for negligence.

In  this case the Judge found that the defendant failed to reduce his speed or alter his line of run. Liability was made out as the collision was avoidable or at the very least could have been reduced to a soft contact which would not have caused injury. Whether or not the collision was intentional, to have run directly at the claimant at full speed and to have collided with him was found to be reckless. It also amounted to playing an opponent without the ball in contravention of the laws under the RFU and as such, encouraged the risk of injury.

Comments

There are a number of key takeaways from this case, namely:

1. Amateur players are not exempt from findings of negligence in the context of sport.
2. Neither, intention to cause serious injury nor recklessness are required for liability to be established (although recklessness was discussed only on the facts of this case) and the ordinary test of negligence will still apply.
3. Breaching sporting rules will not necessarily mean negligent behaviour but will be considered by the court.
4. It is important to obtain any video evidence of sporting matches as soon as possible as this will be a beneficial evidential tool.
5. Ensure that those competing in sport have appropriate insurance arrangements in place.